HOYER: AGGRESSIVE ACTION NEEDED TO RESTORE THE INTENT OF THE AMERICANS WITH DISABILITIES ACT

“Supreme Court Decisions Are a Clear Example of Judicial Activism”

For Immediate Release:

October 21, 2004

Contact:Rep. Steny H. Hoyer202-225-3130

One year ago, my dear friend Tony Coelho issued the “Coelho Challenge,” urging the disability community to only support Presidential candidates who adopt a five-point agenda for dismantling the barriers to work for people with disabilities.

As Tony stated then, and as those of us here today recognize: “Work provides discipline and structure to our lives. It is a source of identity and social acceptance. . . Work makes sustaining life and building a material existence vastly easier.”

“Without work,” he said, “we are doomed to fail. With work, we may still fail, but we at least have the dignity of trying to succeed for ourselves.”

In fact, when the landmark Americans With Disabilities Act was signed into law on July 26, 1990, we sought to end discrimination in the workplace based upon an individual’s real or perceived disability because we knew that a good job was the real key to independence and self-sufficiency.

The ADA – the world’s first comprehensive declaration of equality for people with disabilities – was an explicit statement that a disability need not result in exclusion, paternalism or dependence. Under this new law, Americans with disabilities were guaranteed that employers could not discriminate against them simply because they have a disability.

And over the last 14 years, there is no question that the ADA has ushered in significant change. Ramps, curb cuts, braille signs, and assistive listening devices at movie theaters. Signs of progress surround us.

Thousands of Americans with disabilities have joined the workforce – which, in the words of the first President Bush, unlocked “a splendid resource of untapped human potential, that when freed will enrich us all.”

However, our progress and the best efforts of so many in the business community must not obscure this fact: The promise of the ADA remains unfulfilled for far too many of America’s 54 million citizens with a disability.

Only 32 percent of people of working age who have a disability are employed. More than two-thirds who are not employed say they would prefer to work. Three times as many individuals with disabilities live in poverty as those without. And people with disabilities are twice as likely to drop out of high school.

Fairness in the workplace continues to be the overriding issue that confronts us. And it must galvanize us and move us to action today.

We still have not reached the point in this country where if you are qualified and you can do the job, you get that job – without regard to disability. I hope we reach that point – soon. And let me also say, frankly, that if you have a disability and you do not perform, you should face the same consequences as any other worker – including termination.

Equally troubling are the recent decisions by the United States Supreme Court that narrow the scope of the ADA and undermine Congressional intent.

My friends on the Republican side of the aisle talk a lot about “judicial activism.” But there is no worse example of judicial activism than what the Supreme Court and lower federal courts have done regarding the ADA.

I believe it’s clear that the time has come for the United States Congress to get serious about restoring the original intent of the Americans With Disabilities Act, which passed Congress with overwhelming bipartisan majorities and which has enjoyed the strong support of Presidents of both major political parties.

All of us who support the ADA, however, must never forget: Any legislative proposal to restore the intent of the ADA is fraught with peril in this current Congress. Without doubt, there are those who would gladly revisit this law, seeking to unravel it altogether.

As Tony stated in his speech last year, “The Americans With Disabilities Act is under savage attack in the courts, and we must save it.”

Let me be clear: When we wrote the ADA, we intentionally used a definition of disability that was broad – borrowing an existing definition from the Rehabilitation Act of 1973.

We did this because the courts had generously interpreted this definition in the Rehabilitation Act. And, we thought using established language would help us avoid a potentially divisive political debate over the definition of “disabled.”

Therefore, we could not have fathomed that people with diabetes, epilepsy, heart conditions, cancer and mental illnesses would have their ADA claims kicked out of court because, with medication, they would be considered too functional to meet the definition of “disabled.” Nor could we have fathomed a situation where an individual may be considered too disabled by an employer to get a job, but not disabled enough by the courts to be protected by the ADA from discrimination.

The Court’s decisions in Sutton, Kirkingburg and Murphy in 1999, and Toyota Manufacturing in 2002 are particularly egregious. Recall that Justice O’Connor, in writing for a unanimous Court in Toyota Manufacturing, cited a phrase or context to invoke what “Congress intended” in four places.

Justice O’Connor said the terms “substantially limited” and “major life activities,” need to be “strictly interpreted to create a demanding standard for qualifying as disabled.” The Court went on to say that “substantially limited” means to prevent or severely restrict.

This was not our intent.

Nor did we anticipate that, contrary to our explicit instructions, the Court would eliminate from the Act’s coverage individuals who have mitigated the effects of their impairments with medication or assistive devices, as in Sutton, Murphy and Kirkingburg.

And, we failed to anticipate that the Court would create a risk-to-self defense, as in Echazabal, because the ADA itself only allows employers to deny jobs to workers with disabilities if they pose a “direct threat” to other workers. We said nothing about the risk-to-self defense.

When we wrote the ADA, we estimated that 43 million people would be covered. But we thought this figure only demonstrated our intent to give the law broad application.

The Court viewed things differently, with Justice O’Connor writing in Toyota Manufacturing that: “If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher.”

In adopting such an interpretation, the Court has failed to acknowledge the “regarded as” prong of the law, which protects every single American from being discriminated against on account of a disability whether real or perceived.

For you see, the real point of the ADA is not disability. It is discrimination.

I should note that a few days after the Court issued its decision in Toyota Manufacturing, I wrote a piece in The Washington Post arguing that the Court had erred in that decision because Congress never intended such a narrow interpretation of “disability.”

I think the Court is sensitive to this criticism because shortly after that piece was published, Justice O’Connor reportedly told the annual meeting of the Corporate Counsel Institute that the ADA was an example of what happens when a bill’s sponsors “are so eager to get something passed that what passes hasn’t been as carefully written as a group of law professors might put together.”

In truth, though, this law was the product of careful research, drafting and negotiation between disability-rights and business community lawyers.

Given the adverse rulings by the Supreme Court and lower courts, the time has come for us to consider aggressive legislative action in Congress to address the unmistakable weakening of the protections afforded under the ADA.

But we need to be careful and pick our shots strategically. However, none of us should minimize the potential peril in reopening this landmark measure to amendment.

Today, I want to briefly set forth some broad principles for ADA restoration that I believe we must fight for, although this is by no means a comprehensive list.

First, Congress must make unmistakably clear that we intended the phrase “disability” to include every person in America with a disability, not merely those who can avoid interpretational traps constructed by hostile courts. There are many different ways of accomplishing this goal, and it may even require changing the literal definition of “disability” that is written in the ADA.

For example, we might include a provision that explicitly states that the ADA is to be construed broadly to achieve the law’s objective of eliminating pervasive discrimination. We might also remove the finding from the ADA that some 43 million Americans have a disability – a number that came from Census Bureau figures at the time the law was enacted.

And we might explicitly state that you are covered by the ADA if you are discriminated against based upon misunderstandings, fears, myths or stereotypes and that some are afraid to hire you – even if your condition does not substantially impair your ability to do the job.

Second, I believe that we must make clear that determinations of disability should be made without regard to mitigating measures, or whether the impairment is episodic in nature. If you encounter discrimination because you have an impairment, or because of others’ fears and stereotypes about your condition, you should be protected against unfair discrimination.

Otherwise, you end up with absurd results, such as saying to my friend Tony that he is not disabled as long as he takes his Phenobarbital to substantially control his epilepsy – or, as a number of courts are now saying, you are not disabled because your symptoms only occur periodically. We must eliminate the Catch-22 whereby an individual who has been discriminated against on the basis of his or her disability cannot receive protection under the ADA because he or she does not qualify as disabled!

Third, in light of the Court’s decision in Echazabal, we must clarify that people with disabilities can make decisions for themselves, just like all other Americans. When we wrote the ADA we understood that there should be a defense available to employers if an employee poses a threat to others. However, we never intended that the law should be interpreted by the courts to allow employers to assert a “risk-to-self” defense. That kind of out-dated, paternalistic reaction based on old stereotypes and prejudices is exactly the type of behavior that the ADA was intended to eliminate.

And fourth:We should make clear that both employers and employees with disabilities owe an obligation to sit down and find truly reasonable accommodations. That is, we need to be problem-solvers rather than adversaries.

When we wrote the ADA, we envisioned employers and their employees with disabilities working together in an interactive process to find accommodations that made sense for everyone. Disabilities differ from person to person. And workplaces can be different across employers, and even within the same organization. Employees with disabilities know more about their conditions. Employers know more about their workplaces.

If they shared information and worked together, we believed that more workers with disabilities would find and keep good jobs, and employers would get great employees at little or no added cost. Unfortunately, employers have turned to litigation too often, and the Supreme Court’s decisions have only encouraged them to do so.

Let’s get back to the interactive process.

Of course, any effort to restore Congressional intent in the Americans With Disabilities Act must be part of a carefully thought out strategy. Otherwise, we are only inviting trouble and risking a rollback of the gains that have already been made.

Despite the broad bipartisan support for the ADA, the current Republican-controlled Congress is not a particularly friendly climate for the ADA or other civil rights laws.

Congressman Mark Foley of Florida has introduced his ADA Notification Act in this Congress and is sure to do so again in the 109th Congress that will convene in January. And there are other signs of hostility, too. For example, the Texas Republican Party called for dismantling the ADA in its platform.

We have surely traveled a long way from the day when the President’s father demonstrated such a courageous commitment to the ADA, and when the Senate Republican Majority Leader – Bob Dole – was a driving force in enacting this law.

We knew precisely where the first President Bush and his successor, President Clinton, stood. Bill Clinton made these issues a Presidential level priority, creating by Executive Order the Presidential Task Force on Employment of Adults with Disabilities. This was not a task force of low- or middle-level staff, but of people like former Secretary of Labor Alexis Herman and Tony Coelho.

President Clinton also signed the Ticket to Work Act and the Work Opportunity Tax Credit. And he signed Executive Order 13163, which called for 100,000 new hires of people with disabilities in the federal government by 2005.

In contrast, President Bush has failed to demonstrate the same level of commitment to these issues. I don’t mean to be unfairly critical of the President, and I applaud him for announcing the “New Freedom Initiative” just two weeks after taking office. Among other things, the Initiative called for increased funding for assistive technologies and IDEA and improving transportation and community services for those with disabilities.

But the fact is, President Bush dismantled the Presidential Task Force. He nominated Jeffrey Sutton and Bill Pryor to the federal bench – both of whom have spent their careers fighting the ADA. Further, his tax policies have undermined the federal government’s ability to properly fund programs promoting and furthering the independence and self-sufficiency of individuals with disabilities.

And, he has even dropped the government-wide goal of hiring 100,000 disabled federal employees.

In July, I wrote the President’s Chief of Staff, Andy Card, concerning the EEOC report documenting the lack of progress made by people with disabilities in the federal workforce. Today, I’m still waiting for a reply.

As I’ve noted several times, the ADA was – and still is – supported by a wide range of Americans of all political stripes.

But we cannot deny the importance of our upcoming national election on the future course of the ADA and our desire to ensure that this landmark law fulfills its promise.

As Al Hunt, the respected columnist for The Wall Street Journal, pointed out in a recent column: “If you are blind, deaf, or in a wheelchair, the stakes on November 2nd are enormous.”

The clearest evidence of that is the certainty that our next President will make crucial appointments to the federal bench, including possibly several appointments to the Supreme Court.

So, it’s not an overstatement to say that this election – with both the White House and Congress at stake – will be crucial to the future of the ADA, as well as the issues that are critical to the independence and self-fulfillment of people with disabilities.

Let me conclude by saying that our work is far from finished. There is much more to be done. With more and more severely injured soldiers returning home from Afghanistan and Iraq, we have a responsibility to assure them that they will receive the fair treatment they deserve as they attempt to return to work and full lives in their communities.

It’s been 14 years since the enactment of the ADA, and we’ve seen many improvements. But we need and must demand political leadership that is willing to fight for disabilities issues and declare them a priority. We need the strong voices of the advocates behind us.

And we must continue to fight for policies – and candidates who support policies – that recognize the importance of moving people with disabilities into the workplace. The vast majority of individuals with disabilities can work, and want to work. And yet, the cost of not helping them succeed, and breaking down barriers to access to the workplace, is that we ask them to rely upon federal benefits such as Supplemental Security Income, Medicaid and TANF to survive.

We also must recognize that there is a strong and persistent movement in the wrong direction. But we should always take heart that the cause of justice and the tide of history are an unstoppable force at our backs, and that ultimately we will prevail.

As George Bush said when he signed this momentous piece of legislation into law: “Our challenges are great, but our will is greater. And in our America, the most generous, optimistic nation on the face of the earth, we must not and will not rest until every man and woman with a dream has the means to achieve it.”

That simple statement encapsulates the enormous step forward that this nation took 14 years ago. And despite the setbacks we have suffered since then, we have no intention of ever turning back.